The above-entitled matter was duly heard by Court-appointed
Hearing Examiner, ROBERT J. CAMPBELL who conducted the hearing, considered
the evidence and prepared and submitted Findings of Fact and Conclusions
of Law and Proposed Judgment for consideration by the Court.

The Court has reviewed the record of the proceedings.
I also requested and received additional arguments from counsel concerning
questions I had after my initial review of the hearing examiner's proposed
decision. Having considered the additional arguments, I find that the
hearing examiner's decision is correct except as to the amount of the
wage supplement entitlement.

Prior to his injury the claimant worked five ten
hour days a week. With overtime he averaged a 55-hour work week.

The hearing examiner has determined that claimant
is now limited to a 45-hour work week. I am persuaded that the finding
is correct. Dr. Hilleboe medically restricted claimant to driving 45 hours
a week. His testimony concerning the restriction was strong and unequivocal.
While claimant is required to stop every 2 hours to check tires, thus
providing him an opportunity to stretch and walk around, he spends most
of his time in his truck driving. Evidence does not indicate that the
time involved in tire-checks and a turn-around in Helena was substantial.
While claimant may exceed the 45 hour a week limit on occasion, that fact
does not prove that he could work 55 hours a week on the average.
He testified that following his return to work he attempted a five-day
work week but experienced discomfort. (Tr. at 21) In 1991 and 1992 he
averaged 45.62 and 45.19 hours a week respectively. The averages are very
close to the 45 hour restriction.

However, we must still determine if claimant is entitled
to wage supplement benefits based on the difference in hours. The insurer
argues that claimant's work week was reduced to 45 hours for reasons unrelated
to his injury, and that he therefore suffered no wage loss on account
of his injury. Claimant responds that the statutory formula for wage supplement
benefits is mechanical and must be applied whether or not the wage loss
was in fact caused by the injury.

The wage supplement benefit is computed by multiplying
"the difference between the worker's actual wages at the time of the injury
and the wages the worker is qualified to earn in the worker's job pool"
by two thirds (2/3). Section 39-71-703 (1)(b)(i), MCA (1989). There is
a statutory cap on the benefit. Id. If claimant's argument is adopted,
the benefit is payable whether or not the difference resulting from the
calculation is a consequence of the injury. The benefit would be payable
even if the lesser wage the worker is qualified to earn in his post-injury
job market is due entirely to circumstances unrelated to the injury, e.g.
the elimination of the highest paid jobs from the job market on account
of independent business or economic reasons. The benefit would also be
payable even if the worker's inability to perform jobs within his pre-injury
job market is due to reasons other than his industrial injury, e.g., to
some other non-work injury or disease.

The wage supplement provisions must be construed
reasonably and with common sense. "It is a well-established rule of statutory
construction that a statute be read as a whole and construed so as to
avoid absurd results." Dover Ranch v. Yellowstone County,
187 Mont. 276, 283, 609 P.2d 711 (f1980). The purpose of the wage
supplement is to compensate the worker for lost wages resulting from his
industrial injury. The requirement of a causal connection is implicit
in the statute, and it is explicit in the statement of purpose adopted
by the legislature when it enacted the wage supplement provision. Section
39-71-105(1), MCA (1989), enacted in 1987, sets forth the following statement
regarding wage loss benefits:

39-71-105. Declaration of public policy.
For the purposes of interpreting and applying Title 39, chapters 71
and 72, the following is the public policy of this stated:

(1) . . . Wage-loss benefits are not intended to
make an injured worker whole; they are intended to assist a worker at
a reasonable cost to the employer. Within that limitation, the
wage-loss benefit should bear a reasonable relationship to actual wages
lost as a result of a work-related injury or disease.
[Emphasis added.]

Therefore, the claimant is not entitled to a wage
supplement if the difference in his pre-injury wage and the wage he is
qualified to earn in his post-injury job market is caused by circumstances
unrelated to his injury.

The evidence that the difference in this case is
in fact attributable to claimant's injury is sufficient and convincing.

At the time of his injury the claimant was one of
three full-time feeder truck drivers working at the UPS regional center
in Kalispell. Prior to his injury all three drivers worked five, ten hour
days a week. Upon his return to work, UPS cut the days of work of all
three drivers to four, ten hour days a week. There is uncontradicted evidence
that the cutback in days of work was authorized by the contract between
UPS and the union, of which claimant was a member. Other regional centers
had adopted similar cutbacks. Thus, at first glance it would appear that
the new policy was the independent intervening cause of claimant's lost
hours of work.

However, the cutback was effected only after claimant
consented to it. Claimant's consent, as well as the consent of the other
two feeder drivers, was required by the Union contract. Claimant testified
that he consented to the cutback because of by his back injury. Before
the cutback was broached by UPS, claimant had already requested "a four-day
work week" on account of his medical restrictions. (Tr. at 21.) Thus,
there is substantial evidence supporting a conclusion that the claimant's
injury was a substantial factor in the elimination of the 55 hour position
from his Kalispell labor market.

There is also other evidence to support a finding
that the wages which claimant is qualified to earn in his job pool were
diminished by his injury. As the most senior employee at the Kalispell
center, claimant had the option of taking another UPS driving job with
a work-week greater than 45 hours. He declined the option because of his
injury. (Tr. at 25.) There are also five other UPS feeder driving positions
in Montana which still have five, ten hour day work weeks. All are located
in rural areas far from Kalispell, namely Cut Bank, Havre, Malta, Lewistown
and Broadus. (Tr. at 63.) In light of claimant's many years of residence
in Kalispell, it is doubtful that he would pursue these jobs even if fully
healthy, and his seniority at the Kalispell center would not provide him
with any preference in applying for the positions. However, the wage supplement
statute is based on the availability of jobs in the market, not on actual
job openings, or the likelihood of a worker actually securing a particular
position, or the geographical preferences of a worker. But for his injury,
the five feeder driving positions would have been within the claimant's
job market. Therefore, they provide an additional nexus between the claimant's
injury and any wage loss benefit.

The remaining matter to be decided is the calculation
itself. The hearing examiner calculated the benefit by using claimant's
wages from the four weeks immediately preceding the injury but increased
those wages to reflect an increase in hourly pay which occurred subsequent
to the injury. This resulted in wage supplement benefits based on current
wages rather than the wages paid at the time of the injury, which is contrary
to the statutory directive that the wages used in the calculation are
"the worker's acknowledged wages at the time of the injury." Section 39-71-703
(1)(b)(i), MCA. Since the wage loss in this case is based on simple multiplication
of the lost hours by the hourly wage, it was unnecessary and improper
to use the present wage in the calculation.

The calculation further distorts the benefit because
it fails to account for the fact that the wages for the four weeks immediately
preceding the injury included overtime hours at time and a half. While
the hearing examiner's calculations assumed that all hours were paid at
straight time, and similarly used straight time to compute wages for the
45 hour post-injury work week, this method of calculation in effect gave
claimant credit for working an average pre-injury work week of 61 hours.
($983.41 divided by $16.13 equals 60.9677.) A review of pay records for
the four pay periods immediately preceding the injury reflect claimant's
actual overtime as follows:

Week ending

Overtime
hours

4/07/90

18.02

3/31/90

15.69

3/24/90

13.73

3/17/90

19.14

TOTAL

66.58

AVERAGE WEEKLY OVERTIME 16.645

This average is somewhat more than the average number
of overtime hours for the three previous years, which were as follows:

YearAverage weekly overtime

1987 12.32

1988 14.92

1989 15.26

AVERAGE FOR THREE YEARS 14.16

While almost two hours a week higher than the three
year average, the four week average is not grossly disproportionate to
the three year average and is consistent with the three year upward trend.
I conclude that the average overtime hours for the four weeks preceding
the injury is representative of overtime hours worked by claimant. See
section 39-71-123(3), MCA. That average will therefore be used in calculating
the wage supplement benefit.

Claimant is medically limited to 45 hours a week,
or 5 overtime hours weekly. In 1991 and 1992 he in fact averaged 5.405
hours a week in overtime, which is consistent with the limitation. Since
actual hours are used in the pre-injury calculation, actual hours should
also be used in post-injury calculations.(1)
Using those hours, claimant is entitled to a $120.86 weekly wage supplement
(16.645 minus 5.405 times 16.13 times 2/3) for 500 weeks, less any impairment
award and wage supplement benefits already paid.

THEREFORE, IT IS HEREBY ORDERED that the Findings
of Fact and Conclusions of Law and Proposed Judgement of the Hearing Examiner
are adopted with the revisions set forth in this order. Insofar as the
Hearing Examiner's specific findings of fact and conclusion of law number
are inconsistent with this Order, the Order shall govern.

ACCORDINGLY, IT IS FURTHER ORDERED that Judgement
is entered as follows:

1. This Court has jurisdiction over this matter pursuant
to section 39-71-2905, MCA.

2. Claimant is entitled to 500 weeks of wage supplement
benefits in the amount of $120.86 per week pursuant to section 39-71-703,
MCA (1989). The defendant is entitled to a credit for any impairment award
and wage supplement benefits previously paid.

3. Claimant is not entitled to a 20 percent penalty
pursuant to section 39-71-2907, MCA.

4. Claimant is entitled to costs but not an attorney
fee pursuant to section 39-71-612(2), MCA (1989).

5. The JUDGMENT herein is certified as final for purposes
of appeal pursuant to ARM 24.5.348.

6. Any party to this dispute may have 20 days in which
to request a rehearing from this Order Adopting Findings of Fact and Conclusions
of Law and Proposed Judgment of the Hearing Examiner and Entering Judgment.

DATED in Helena, Montana, this 25th day
of January, 1994.

(SEAL)

/S/ Mike McCarter JUDGE

c: Mr. Allan M. McGarvey Mr. Charles E. McNeil

IN THE WORKERS' COMPENSATION COURT OF THE
STATE OF MONTANA

WCC No. 9211-6627

TED CHAFFEY

Petitioner

vs.

LIBERTY MUTUAL FIRE INSURANCE
COMPANY/

UNITED PARCEL SERVICE

Defendant/Employer.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
AND PROPOSED JUDGMENT

1. Claimant filed a petition to resolve a dispute
between himself and the insurer under Title 39, Chapter 71, Part 29, MCA.

2. The Clerk of Court gave notice to interested parties
of (a) the time, place and nature of the trial; (b) the legal authority
and jurisdiction under which the trial was to be held; (c) the particular
sections of the statutes and rules involved; and (d) the matters asserted
by notifying all parties who appeared of record to have an interest by
mailing to them a copy of the ORDER SETTING TRIAL AND PRETRIAL CONFERENCE
with a copy of the PETITION FOR HEARING attached and a copy of the Clerk's
Certificate of Mailing the Order and Petition. Section 2-4-601, MCA.

3. A pretrial conference was conducted on January
27, 1993, before Clarice V. Beck, Hearing Examiner. The Pretrial Order
was docketed on February 24, 1993. Pertinent parts of the Pretrial Order
are as follows:

STATEMENT OF JURISDICTION

The Court has jurisdiction in the above-entitled
matter, pursuant to Section 39-71-2905, MCA.

STATEMENT OF UNCONTESTED FACTS

1. On or about April 13, 1990, Claimant suffered
an industrial injury arising out of and in the course of his employment
with United Parcel Service, Flathead County, Montana.

2. Claimant timely reported the injury and filed
a claim for compensation to receive benefits for lost earnings and medical
expenses. The insurer has accepted liability for the claim.

3. Employer is enrolled under Compensation Plan
II of the Workers' Compensation Act and its insurer is Liberty Mutual
Fire Insurance Co.

4. The mediation procedure set forth in the Workers'
Compensation Act has been completed.

4. The parties have proposed and the Court adopts
the following issues to be decided by the Court:

1. Whether Claimant sustained a loss in the wages
he is able to earn in his post-injury job market when compared to his
time of injury wages;

4. Whether Claimant is entitled to an award of
attorney fees and costs.

5. The trial in this matter came on March 3, 1993,
in Kalispell, Montana, before Hearing Examiner Robert J. Campbell. Claimant,
Ted Chaffey and Harold Wilshire were sworn and testified. The deposition
of Dr. John W. Hilleboe was stipulated into evidence. The deposition of
claimant Ted Chaffey was offered into evidence as the deposition of an
adverse party, which can be used for any purpose. The deposition was allowed
into evidence over claimant's objection. Exhibit Nos. 1 and 2 and Nos.
4 through 11 were admitted into evidence by stipulation. Exhibit No. 3
was admitted into evidence for limited purposes. The Proposed Findings
of Fact, Conclusions of Law and Proposed Judgments having been filed by
counsel, this matter was deemed submitted on April 28, 1993.

6. The undersigned, having reviewed the pleadings,
considered the Pretrial Order and the exhibits admitted into evidence,
heard the testimony and observed the demeanor of the witnesses at trial
and being fully advised in the premises, now makes the following Findings
of Fact and Conclusions of Law and Proposed Judgment:

FINDINGS OF FACT

1. The uncontested facts are found as fact and adopted
as fact.

Claimant

2. Claimant is 56 years old (DOB May 30, 1936), married
with three children. (Dep. of Claimant at 5.)

3. Claimant did not graduate from high school but
received his GED while in the service. His military experience was in
the army from May 30, 1953 to February 8, 1958 with an honorable discharge.
After military service, claimant went to Pasadena City College on the
G.I. bill. (Dep. of Claimant at 6-8.)

4. Claimant's work history after the military includes
work on an assembly line and as a shipping clerk in California. On May
26, 1959, he began working with United Parcel Service (UPS) in California.
(Dep. of Claimant at 8-10; Tr. at 12.)

5. Claimant worked for UPS as a package car driver
until 1972 when he successfully applied for the job of feeder driver,
which involves driving semi-trucks from one UPS center to another. Claimant
completed the UPS school in 1975 and he was transferred to the feeder
department. (Tr. at 12; Dep. of Claimant at 10-11.) Since May 1976 claimant
has been a feeder driver in Kalispell. Since 1988 he has driven the run
from Kalispell to Helena and return. (Tr. at 31; Dep. of Claimant at 11-12.)

Injury

6. On April 13, 1990, claimant sustained an injury
arising out of and in the course of his employment as a UPS driver. Claimant's
vehicle had a flat tire at Seeley Lake and he injured his back lifting
the tire into the trailer. Claimant felt a sharp pain in his back but
he did not seek medical treatment until he went to Dr. Loren Vranish a
month later. (Tr. at 12-13.)

Medical Evidence

7. On May 18, 1990, at Kalispell Regional Hospital
claimant received his initial treatment from his family physician, Dr.
Vranish, assisted by Dr. John L. Rogers. An MRI performed on that date
revealed degenerative disc changes with mild posterior disc protrusion
at the L4-L5 and L5-S1 levels. On May 19, 1990, Dr. Vranish consulted
with orthopedic surgeon, Dr. John W. Hilleboe, who recommended continued
conservative care. On May 23, 1990, Dr. Vranish consulted with Dr. John
V. Stephens. Dr. Hilleboe testified that the conservative treatment was
unsuccessful and he diagnosed claimant's condition as a herniated nucleus
pulposus at the L4-L5 level on the left. (Dep. of Hilleboe at 5-8.)

8. On May 30, 1990, Dr. Hilleboe performed surgery
which consisted of laminectomy and disc excision at the L4-5 level. (Id.
at 8-11.) Post-operatively, the claimant underwent some physical therapy
and his course of recovery was excellent. Claimant was released to return
to work on September 4, 1990. Claimant returned to work at his former
job as a full-time UPS feeder driver September 9, 1990. The next medical
examination was one year later on September 6, 1991, at which time Dr.
Hilleboe noted that the claimant was doing well driving his truck and
did not need any medical treatment. (Id. at 11.) On November
8, 1991, Dr. Hilleboe wrote a letter to Mr. McGarvey that indicated claimant's
condition would not allow him to drive more than 45 hours a week. (Id.
12-13.)

9. Claimant next saw Dr. Hilleboe on February 25,
1992 and claimant reported a recurrence of back pain. Claimant was placed
on an exercise program and anti-inflammatory prescriptions. On March 10,
1992, claimant was again examined by Dr. Hilleboe who released him to
return to work as a driver and advised him to resume his exercise program.
In addition, claimant was instructed to get out of his vehicle every 60
to 100 miles and change his position. (Id. at 14-15.) At that
time, claimant had reached maximum medical improvement and was assigned
an 18 percent impairment rating. (Id. at 13-15.)

10. On July 16, 1992, the claimant returned to see
Dr. Hilleboe due to low-back discomfort which had occurred while doing
lawn work over the weekend. A repeat MRI was performed showing no evidence
of recurrent disc herniation or post-operative fibrosis. The last medical
treatment of the claimant was a follow-up by Dr. Hilleboe on July 21,
1992 which indicated that claimant had improved. (Id. at 15-17.)
Dr. Hilleboe described the claimant's physical limitations as follows:

Indeed, I feel that Mr. Chaffey subjectively reported
that he was unable to work more than 45 hr. per week without discomfort.
That is certainly within the realm of normal for post-operative back
surgery, particularly since his job is heavy hauler or long term driving
in a truck and that sitting position can become very aggravating post-operatively.
What happens is that the disc has been removed at the 4-5 level and
he is developing narrowing of the 4-5 interspace which then produces
facet impingement secondary to settling. This then develops degenerative
arthritis at the facet joint.

I do not expect Mr. Chaffey's condition will improve
to a point that he would be able to exceed the 45 hour driving. I feel
that if he were to engage in heavy lifting and unloading of his truck
afterwards, that that would actually increase his complaints and degenerative
change and possibly decrease his ability to even work 45 hr. per week.

Ex. No. 2 at 4.

11. Dr. Hilleboe explained the basis for his opinion
as follows:

Q And the mere fact that he was able to, on a few
occasions, drive weeks that exceed 45 hours per week, does that change
your opinion that on the long term he should not exceed an average of
45 hours per week?

A I think that, you know, if he can work 55 hours
a week without injuring himself, that may be great for him and for his
wallet, but I don't think it's good for him physically.

Dep. of Dr. Hilleboe at 23.

12. Dr. Hilleboe arrived at the 45 hour suggested
limitation on actual driving time per week through discussions with the
claimant. On two occasions the claimant exceeded that limitation without
incident, when he worked fifty-five hours during the week ending August
28, 1992, and fifty-one hours during the week ending December 4, 1992.
(Dep. of Dr. Hilleboe at 17-19, Ex. No. 7.) Dr. Hilleboe felt there was
no medical reason why the claimant could not continue to work as a feeder
driver within the 45 hours per week average. (Dep. of Dr. Hilleboe at
19-20.)

Post-Injury Employment

13. On September 9, 1990, claimant returned to work
as a feeder driver, the same job he held on the date of injury. He is
not responsible for loading or unloading and he is able to put on chains
during the winter months. (Tr. at 31-33; Dep. of Claimant at 28, 32.)
As of August 24, 1992, claimant indicated on a UPS form that he did not
have any condition that might require special accommodations or assistance
to enable him to perform his job. (Ex. No. 10 at 2.)

14. At the time of his injury on April 13, 1990, claimant
was earning $16.13 per hour. (Tr. at 19, 32.) Claimant returned to the
same job which currently pays $17.79 per hour. (Dep. of Claimant at 31.)

Benefits Paid

15. Temporary total disability benefits were paid
at the rate of $299.00 per week, for one day, April 15, 1990, and then
from May 17, 1990, through September 3, 1990, when claimant was released
to return to work. They were again paid from January 28, 1992, through
March 15, 1992. (Ex. No. 11.)

16. Permanent partial disability benefits have been
paid at the maximum rate of $149.50 per week beginning March 10, 1992,
through the time of trial, which amounted to 96 weeks of benefits as of
March 4, 1993. (Ex. No. 11.) The impairment award of 18 percent constitutes
90 weeks of benefits, and the balance of permanent partial disability
benefits paid to present are credited against any future wage supplement.

Wage Supplement Benefits

17. The law in effect at the time of claimant's April
13, 1990 injury, calculates pre-injury wages by averaging the four pay
periods immediately preceding the injury. Section 39-71-123(3), MCA (1989).

18. Claimant's four pay periods prior to his injury
were as follows:

April 07, 1990

$1,081.19

March 31, 1990

1,024.82

March 24, 1990

848.36

March 17, 1990

979.25

TOTAL =

$3,933.62

WEEKLY AVERAGE - $983.41

Tr. at 16-17; Ex. No. 7 at 3.

19. Claimant contends that the weeks of March 17 and
24, 1990, each contain one day he did not work and therefore do not accurately
reflect the claimant's wage history with UPS. (Claimant's Proposed Finding
of Fact, No. 15.) After reviewing the payroll records and the evidence
presented, the Court finds that the four pay periods prior to claimant's
injury do accurately reflect his pre-injury wages.

20. Claimant's post-injury earning capacity is best
reflected in his actual earnings in 1991 and 1992. Claimant earned a total
of $43,827.69 in 1991 and $43,181.66 in 1992. Claimant's current weekly
wage thus averages $836.63 per week and his current pay wage is $17.79
per hour. (Tr. at 26.)

21. All of the drivers in UPS centers have been switched
to four ten hour shifts and drive only four days instead of five days
per week. Working out of the Kalispell Center, it is not unusual for the
claimant to drive 42 to 45 hours on a usual work week. (Tr. at 57.) On
occasion claimant has worked in excess of 51 hours per week. (Tr. at 56.)

CONCLUSIONS OF LAW

1. This Court has jurisdiction over
this proceeding pursuant to section 39-71-2905, MCA.

2. Claimant is entitled to 500 weeks
of wage supplement benefits in the amount of $149.50 per week pursuant
to section 39-71-703, MCA (1989). Defendant is to receive credit for
wage supplement benefits previously paid.

The law in effect on the date of claimant's
injury controls. Buckman v. Montana Deaconess Hospital, 224
Mont. 318, 730 P.2d 380 (1986). Accordingly, the 1989 version of the
Workers' Compensation Act applies to claimant's injury of April 13,
1990.

It is the expressed public policy
and objective of the Montana Workers' Compensation System that:

. . . Wage-loss benefits are not
intended to make an injured worker whole; they are intended to assist
a worker at a reasonable cost to the employer. Within that limitation,
the wage-loss benefit should bear a reasonable relationship to actual
wages lost as a result of a work-related injury or disease.
[Emphasis added.]

§ 39-71-105(1), MCA (1989).

The concept of liberal construction
in favor the claimant was repealed in 1987. Section 68, Chapter 464,
Session Laws of Montana, 1987. Accordingly, the claimed wage loss, or
wage supplement benefits, must be the result of the work-related injury.
Such is consistent with the long-standing requirement of proximate cause
primarily imposed through decisional law.

At the time of his industrial injury,
wages are defined as:

39-71-123. Wages
defined. (1) "Wages" means the gross remuneration
paid in money, or in a substitute for money, for services rendered
by an employee. Wages include but are not limited to:

. . . .

(3) For compensation benefit purposes,
the average actual earnings for the four pay periods immediately preceding
the injury are the employee's wages, except if:

(a) the term of employment for the
same employer is less than four pay periods, in which case the employee's
wages are the hourly rate times the number of hours in a week for
which the employee was hired to work; or

(b) for good cause shown by the
claimant, the use of the four pay periods does not accurately reflect
the claimant's employment history with the employer, in which case
the insurer may use additional pay periods.

Claimant's entitlement to wage supplement
benefits is provided by section 39-71-703, MCA (1989), which was in
effect at the time of claimant's April 13, 1990 industrial injury. That
section provides as in part as follows:

39-71-703. Compensation
for permanent partial disability - impairment awards and wage supplements.
(1) The benefits available for permanent partial disability are impairment
awards and wage supplements. A worker who has reached maximum healing
and is not eligible for permanent total disability benefits but who
has a medically determined physical restriction as a result of a work-related
injury may be eligible for an impairment award and wage supplement
benefits as follows:

. . . .

(b) The following procedure must
be followed for a wage supplement:

(i) A worker must be compensated
in weekly benefits equal to 66 2/3% of the difference between the
worker's actual wages received at the time of the injury and the wages
the worker is qualified to earn in the worker's job pool, subject
to a maximum compensation rate of one-half the state's average weekly
wage at the time of injury.

(ii) Eligibility for wage supplement
benefits begins at maximum healing and terminates at the expiration
of 500 weeks minus the number of weeks for which a worker's impairment
award is payable, subject to 39-71-710. A worker's failure to sustain
a wage loss compensable under subsection (1)(b)(i) does not extend
the period of eligibility. However, if a worker become eligible for
temporary total disability, permanent total disability, or total rehabilitation
benefits after reaching maximum healing, the eligibility period for
wage supplement benefits is extended by any period for which a worker
is compensated by those benefits after reaching maximum healing.

(2) The determination of permanent
partial disability must be supported by a preponderance of medical
evidence.

The intent of the legislature in enacting
the amendments to section 39-71-703, MCA, was to eliminate specific
factors previously considered in determining partial benefits based
on an actual loss of earning capacity. The legislature limited the claimant's
entitlement by providing wage supplements calculated only on a comparison
of claimant's pre-injury actual earnings and his post-injury earning
potential in his job pool.

In the case at bar, it is agreed that
at the time of his industrial injury, claimant was earning $16.15 per
hour and that he returned to work as a feeder driver earning $17.79
per hour.

Under the law in effect at the time
of the injury, supplemental benefits are payable to the claimant in
the amount of two-thirds of the proven loss of actual wages which resulted
from the industrial injury.

First, in determining claimant's pre-injury
actual earnings, claimant's counsel argues that the four preceding pay
periods prior to the April 13, 1990 injury, do not accurately reflect
claimant's actual earnings. Instead claimant urges the Court to average
his entire wages from 1988 to the date of the injury.

The Court finds the previous four
pay periods accurately reflect claimant's pre-injury earning capacity
and sets $983.41 per week as of his pre-injury earnings. To calculate
present value, divide the present wage ($17.79 per hour) by the wage
paid at the time of injury ($16.13), times his present weekly wage ($983.41)
which results in his pre-injury earning capacity in present dollars
($1,084.62).

Claimant's post-injury earnings of
$17.79 per hour is higher than his pre-injury earnings per hour, but
Dr. Hilleboe has placed a 45 hour per week limitation on claimant's
driving time. The limitation is reasonable and necessary to minimize
future aggravation to claimant's back. Claimant's post-injury earning
potential in his job pool is $800.55 per week (17.79 x 45).

Claimant's wage supplement as calculated
in section 39-71-703(1)(b), MCA (1989) is $1,084.62 pre-injury wages
less $800.55 post-injury earnings, equalling $284.04 times sixty-six
and two-thirds percent or $189.37 per week which is more than one-half
the average weekly wage and claimant's wage supplement entitlement is
limited to $149.50 per week.

3. Claimant is not entitled to a 20
percent penalty pursuant to section 39-71-2907, MCA.

A bona fide dispute existed between
the parties and defendant did not unreasonably delay or deny benefits
which would justify a 20 percent penalty pursuant to section 29-71-2907,
MCA.

4. Claimant is entitled to costs but
not an attorney fee pursuant to section 39-71-612(2), MCA (1989).

At the time of claimant's industrial
injury, the law in effect denies an attorney fee unless there is a determination
that the actions of the insurer were unreasonable.

PROPOSED JUDGMENT

1. This Court has jurisdiction over this matter
pursuant to section 39-71-2905, MCA.

2. Claimant is entitled to 500 weeks
of wage supplement benefits in the amount of $149.50 per week pursuant
to section 39-71-703, MCA (1989). Defendant is to receive credit for
wage supplement benefits previously paid.

3. Claimant is not entitled to a 20
percent penalty pursuant to section 39-71-2907, MCA.

4. Claimant is entitled to costs but
not an attorney fee pursuant to section 39-71-612(2), MCA (1989).

5. Any party to this dispute may have
20 days in which to request a rehearing from these Findings of Fact
and Conclusions of Law and Proposed Judgment.

DATED in Helena, Montana, this
25th day of January, 1994.

(SEAL)

\s\ Robert J. Campbell
ROBERT J. CAMPBELL
Hearing Examiner

Submitted: April 28, 1993

1. Claimant argues
that defendant conceded that he is working 42 to 45 hours weekly. The
actual figure is within the upper limits of any such concession.